McGowan & Ors, R. v [2023] EWCA Crim 247 (21 February 2023)

LORD JUSTICE HOLROYDE:

1. On 29^th July 2021, after a trial in the Crown Court at Kingston-upon-Thames before His Honour Judge Shetty and a jury, Owen McGowan, Emeka Dawuda-Wodu, Bradley Baker and Nyle Backhouse were convicted of a joint offence of wounding Charlie Hirshman with intent to do him grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. They were acquitted of a charge of attempted murder of Mr Hirshman.

2. For convenience we shall refer to them all as "appellants". Intending no disrespect, we shall for the most part use surnames only when referring to individuals.

3. McGowan, Baker and Backhouse were sentenced by Judge Shetty on 23^rd December 2021. Backhouse was also sentenced on that date for offences of possession with intent to supply drugs of both Class A and Class B and an offence of money laundering, to all of which he had pleaded guilty. Dawuda-Wodu was separately sentenced by Her Honour Judge Joseph KC at the Central Criminal Court, having been convicted of an offence of murder and having pleaded guilty to an offence of perverting the course of justice.

4. McGowan now appeals by leave of the single judge against his conviction and sentence, and renews to the full court two grounds of appeal against conviction in respect of which the single judge refused leave. Dawuda-Wodu appeals against his sentence by leave of the single judge, and renews to the full court his application for leave to appeal against conviction, which was refused by the single judge. Baker's application for an extension of time in which to apply for leave to appeal against sentence has been referred to the full court by the Registrar. Baker had also applied to renew his application for leave to appeal against conviction following refusal by the single judge, and had applied to vary his grounds of appeal and to rely on fresh evidence. Those applications have, however, today been abandoned with the leave of the court. An application by Backhouse for an extension of time in which to apply for leave to appeal against sentence has been referred to the full court by the Registrar.

5. We begin by outlining the chronology of the events giving rise to the convictions and sentences.

6. In mid-December 2019, Dawuda-Wodu did acts tending and intended to interfere with the course of public justice by assisting in the disposal of the corpse of William Algar, who had been murdered, and by assisting in destroying evidence. On 19^th December 2019, Dawuda-Wodu and others murdered Ebrima Cham. Both of the deceased had previously been supplied with drugs by dealers with whom Dawuda-Wodu was involved. Algar was stabbed to death, and his body was left in his home. Dawuda-Wodu was acquitted of that murder, but pleaded guilty to being one of the men who some weeks later cut up the body and buried parts of it. Cham was also stabbed to death. Dawuda-Wodu was convicted of his murder in April 2021 and sentenced by Judge Joseph KC in August 2021.

7. In the early hours of 3^rd January 2020, Hirshman was stabbed outside the home of a female friend whom he had visited that night. Dawuda-Wodu had been staying at that property, and the other appellants were with him on that night. The prosecution case was that it was a joint attack by the four appellants, all of whom were armed with knives. Hirshman's evidence was that he first saw the appellants when he went to the house on the previous evening; that he saw them in the living room when he later returned with his female friend; that he could see the outlines of knives in their trousers; that they all came to the front door as he was leaving; and that they all took part in stabbing him repeatedly. He said that he believed that it was the smallest of the four who had the largest knife.

8. Hirshman sustained three wounds to his torso and two wounds to the left side of his face. One of the wounds to the torso passed through the ribs, injured the spleen and punctured a lung, causing a pneumothorax. Hirshman's diaphragm was also injured.

9. As we have said, the trial of the appellants for that offence took place in July 2021, and therefore after Dawuda-Wodu had been convicted of the offences of murder and perverting the course of justice, although before he had been sentenced for those earlier offences.

10. Between January and March 2020, Backhouse committed the drugs and money laundering offences, which involved his dealing in MDMA, ketamine and cannabis. He pleaded guilty to those offences in December 2021.

11. We now turn to the trial of the appellants for the offence against Hirshman. The evidence relied on by the prosecution included the following:

(1) An expert medical witness gave evidence in which he did not accept a suggestion that Hirshman's wounds were indicative of only one knife having been used by one person.

(2) Local residents gave evidence of what they had observed in the street in the early hours. Some of their evidence was said by the prosecution to describe the actions of the appellants when leaving knives which Dawuda-Wodu and Backhouse were alleged to have collected the following day.

(3) Two police officers gave evidence of seeing Dawuda-Wodu and Backhouse near the scene of the incident in the early hours of the following morning. Both of those appellants gave false details when asked. The prosecution case was that they had returned to the scene to recover one or more knives.

(4) At later identification procedures, Hirshman identified three of the appellants, but not Backhouse, as having been members of the group which attacked him. Another person who was living at the house identified McGowan, Baker and Backhouse as having been present that night, although he said that he was not sure whether they were involved in the stabbing.

(5) Two knives were recovered near the scene by the police: a lock-knife and a Rambo-style knife. One of these knives yielded a mixed DNA profile from three sources, in which DNA matching Baker was represented. However, an expert witness gave evidence that the DNA analysis did not assist with who had been in possession of the knives, or whether they had been used to stab Hirshman.

12. In addition, the prosecution were permitted to rely on the following evidence, the admission of which had been opposed by the appellants concerned.

13. First, McGowan was arrested at his home later on 3^rd January 2020. In addition to finding a tracksuit hanging on a radiator, which the prosecution suggested had been washed to remove evidence of the crime, the police recovered a 22 inch machete and a 17 inch zombie knife from a wardrobe in a bedroom used by the appellant's parents. The prosecution case was that these knives belonged to McGowan, which was said to be consistent with Hirshman's evidence that the smallest boy had the largest knife. In addition, internet searches relating to Rambo knives and zombie knives had been made using McGowan's phone a few weeks earlier.

14. The judge ruled that this evidence "had to do with the alleged facts of the offence with which [the appellant] was charged", in that McGowan was said to have been in possession of a large knife, and one of the knives recovered by the police was of a kind similar to the subject of one of the internet searches. The evidence was therefore excluded from the definition of bad character evidence by section 98 of the Criminal Justice Act 2003. The judge went on to say that if section 98 did not apply, he would have admitted the evidence as evidence of bad character under section 101(1)(d) of that Act.

15. Secondly, Dawuda-Wodu's conviction for the murder of Cham was admitted as evidence of bad character which showed a propensity to commit violent crime involving the use of a knife and so making it more likely that he committed the offence against Hirshman. The judge also ruled that the conviction was admissible under section 101(1)(d) of the 2003 Act in relation to the issue of whether Dawuda-Wodu was involved in the attack on Hirshman, on the basis that the jury could find that his involvement in another offence of group violence using knives supported the correctness of Hirshman's evidence and rebutted any innocent explanation for Dawuda-Wodu having been seen in the area where knives were recovered.

16. Thirdly, Baker had a previous conviction for possessing a bladed article, namely a lock-knife with a two inch blade, in a public place. He pleaded guilty to that offence, which was committed in December 2018 when he was aged 16, and was made subject to a referral order by a Youth Court. Backhouse also had a previous conviction for possessing a bladed article in a public place, that offence having been committed in October 2019. The judge admitted evidence of both these convictions, again on the basis that it was evidence of bad character capable of showing a relevant propensity, and on the basis that the jury could find that previous unlawful possession of a knife made it more likely that Hirshman's evidence was correct.

17. The appellants had, for the most part, made no reply when interviewed under caution. None of them gave evidence. The case presented for each was that he admitted presence in the house, but denied any involvement in the stabbing just outside the house, which occurred in darkness and in circumstances which made identification difficult. Hirshman was said to be an inconsistent and unreliable witness, who had at the material time been more inebriated than he admitted, and he was said to be mistaken in his description of four men attacking him.

18. We next summarise the sentencing hearings in August and December 2021. We note that none of the appellants had previously received a custodial sentence.

19. In sentencing Dawuda-Wodu, Judge Joseph KC necessarily imposed a sentence of custody for life for the murder of Cham. In deciding the minimum term to be served, the judge took a starting point of 25 years, in accordance with paragraph 4(2) of Schedule 21 to the Sentencing Code. She regarded the context of drug dealing and a criminal way of life as a serious aggravating feature. She rejected a submission that the attack on Cham had not been planned, and found that it had been designed to punish Cham, who had been stealing from and causing problems for the head of the drug dealing operation, and to deter others. She also found that all those who carried out the attack had intended to kill.

20. The judge noted, as mitigating features, that the appellant had been only 18 at the time of the offences and had no previous convictions, although he had been an active member of a gang concerned with drug dealing and violence, and clearly had an interest in knives. She referred to a report by a consultant forensic psychologist, which she regarded as presenting a very worrying picture.

21. Balancing the aggravating and mitigating factors, the judge concluded that the appropriate minimum term for the murder alone would have been 24 years. She then had to impose concurrent sentences for the other offences and to increase the minimum term to reflect them. She took a starting point for the offence of perverting the course of justice of nine years, which she reduced to six years by reason of the appellant's youth, and a reduction of around 20 per cent for the guilty plea. The sentence for that offence on its own was accordingly six years' detention in a young offender institution.

22. In relation to the offence of wounding with intent, the judge found the appellant to be a dangerous offender. She placed the offence in category 1A of the guideline, with a starting point of 12 years' custody, and found that it was aggravated by the fact that the appellant was under the influence of drugs, and that as Hirshman lay wounded on the ground, his attackers had taunted him and caused him further fear. Taking into account the appellant's youth, the judge concluded that the appropriate sentence for this offence in isolation was one of 11 years and three months' detention.

23. The judge then made a final reduction to take account of totality. Had she not done so, she would have increased the minimum term to 34 years and six months. As it was, she increased the minimum term to 31 years, less the 582 days which Dawuda-Wodu had spent remanded in custody.

24. In sentencing McGowan, Baker and Backhouse, Judge Shetty described the attack on Hirshman as "frenzied and vicious", and said that the victim had been lucky to survive it. He rejected a submission that Hirshman had provoked the appellants in a way which reduced their culpability. The judge noted that Hirshman had undergone an emergency laparotomy to repair his injured lung and spleen. He had still been suffering from difficult breathing, and numbness on one side of his face when he gave an account of his injuries some 18 months later.

25. In connection with the assessment of dangerousness, the judge referred to the evidence that McGowan, Dawuda-Wodu and Baker had been using the house for drug dealing purposes and had habitually carried significant knives capable of inflicting serious injury. He assessed the offence as involving high culpability and life-threatening injury, and placed it in category 1A of the guideline, with a starting point of 12 years' custody. The aggravating features he found were group activity, taunting of the victim, the background of carrying of knives, the previous convictions of Baker and Backhouse for possession of knives, the disposal of the weapons, the attempt by Dawuda-Wodu and Backhouse to return to the scene to retrieve knives, and the ownership by McGowan of at least the zombie knife found at his house.

26. The judge found the three appellants to be dangerous offenders and concluded in each case that an extended sentence was necessary to protect the public. He took into account, as a mitigating factor, the youth of the appellants. In the case of McGowan, who was an immature 16 year old at the time of the offence, he reduced the sentence he would otherwise have imposed by one-half to reflect the appellant's young age, immaturity and significant intellectual limitations. In the cases of Baker and Backhouse, each of whom was aged 17 at the time of the offence, he made a reduction of one-third.

27. The judge imposed the following sentences: for McGowan, an extended sentence of seven years' detention, comprising a custodial term of six years and an extended licence period of one year; for Baker, an extended sentence of nine years' detention, comprising a custodial term of eight years, and an extended licence period of one year, with 139 days to count against that total sentence in relation to the period when Baker was subject to a qualifying curfew. In relation to Backhouse, the judge imposed concurrent terms of one year's detention for each of the offences to which he had pleaded guilty, and a consecutive extended sentence of nine years, comprising eight years' detention and an extended licence period of one year. 240 days were to count against that total sentence in relation to the period when Backhouse had been subject to a qualifying curfew.

28. We now turn to the appeals and applications. We start with those relating to conviction.

29. McGowan appeals with leave of the single judge on grounds relating to the admission of the evidence of the recovery of knives from the appellant's home, and the internet searches for knives made using his phone. Mr Christie KC submits that none of that evidence fell within the scope of section 98; there had been no bad character application in respect of it; and even if it was admissible, it should have been excluded because its prejudicial effect outweighed any probative value. He further submits that the judge failed properly to distinguish between the two distinct aspects of this evidence and failed properly to direct the jury about it.

30. Mr Christie renews his application for leave on two further grounds. He argues that the judge should have given a Turnbull direction, and that the judge failed to remind the jury of important evidence which contradicted the evidence which identified McGowan as being involved in the attack.

31. All of those grounds of appeal are opposed by the respondent. Miss Wilkinson confirms that no bad character application was made in respect of the evidence, which she submitted came within the ambit of section 98; but she also confirms that she did not at any stage disavow any intention of pursuing a bad character application if the judge did not accept her submission as to section 98.

32. We have reflected on these submissions. There was no evidence capable of proving that either of the knives found at the appellant's home was carried or used at the time of the attack on Hirshman. There was an agreed fact before the jury that the appellant's father had told the police that the recovered knives were his, although he had not been called as a witness for the defence. There was no evidence that any of the internet searches had led to a purchase of a knife by the appellant. In those circumstances we see force in the submission that the judge was wrong to find that the evidence of the finding of the knives and of the internet searches was evidence having to do with the facts of the crime alleged within the meaning of section 98. Case law establishes that for evidence to fall within section 98 it must have some nexus, often but not necessarily temporal, to the evidence relating to the offence charged: see, for example, R v Tirnaveanu [2007] EWCA Crim 1239. It is for that reason that applications to adduce evidence on the basis that it comes within the ambit of section 98 are not infrequently coupled with alternative applications under the relevant provision of the Criminal Justice Act 2003 in relation to bad character evidence.

33. We are not persuaded that the necessary nexus has been shown in this case, in particular because the matters relied upon by Miss Wilkinson are, in our view, better regarded as evidence of a relevant propensity. We are, however, satisfied that if a bad character application had been made, it would inevitably have succeeded. The evidence was rightly admitted on the alternative basis identified by the judge, namely pursuant to section 101(1)(d) of the 2003 Act as evidence relevant to an important matter in issue between the prosecution and the defence. The matter in issue was whether the appellant, who was the youngest and smallest of the four, was armed with a large knife. The jury could certainly find that the appellant had made the internet searches, using the phone which was in his possession when he was arrested. They could certainly find, notwithstanding what his father had said to the police, that the appellant was the owner of the knives found in the wardrobe. If the jury made either or both of those findings, they could conclude that they showed a keen interest on the appellant's part in the acquisition and possession of large knives; that the findings supported Hirshman's account that such a knife was being carried by the youngest attacker; and that the findings rebutted any suggestion that it was mere coincidence that Hirshman made that allegation against a defendant who did in fact have an interest in, and possessed, large knives. There is, in our view, no basis on which it could be said that the judge was wrong not to exclude this evidence. Whilst it was certainly prejudicial, it was not unfairly so, and the prejudicial effect of the evidence was outweighed by its probative value.

34. We think it regrettable that the prosecution did not make a bad character application, if only as an alternative to the application in reliance on section 98. There would then, as Mr Christie rightly submitted, have been greater clarity as to how exactly the prosecution put their case, and the judge would have been better assisted to formulate his ruling. The failure to make that application does not, however, cast doubt on the safety of the conviction, because in the circumstances of this case we are satisfied that if the judge had simply ruled against the section 98 application, the prosecution would then have made a bad character application and the judge would rightly have granted it.

35. We are further satisfied that the judge's directions to the jury in this regard were accurate and sufficient in law. They were accompanied by an entirely fair reminder of the relevant features of the evidence.

36. Accordingly, having considered the grounds of appeal against conviction which the single judge identified as arguable, we are unable to accept them.

37. As to the renewed grounds, we agree with the single judge that they are not arguable. Given Hirshman's evidence that he was attacked by the group who had just been with him inside the house, there was no need for a direction of the kind considered in Turnbull, or any modified version thereof. It would have been better if the judge, in addition to identifying at various points the evidence relevant to the challenges to Hirshman's reliability, had drawn all those strands together and had in that passage reminded the jury that the attack happened very suddenly and very quickly, so that the jury had to be sure that Hirshman was correct in his evidence that all four appellants were involved. We are not, however, persuaded that the omission of such a passage casts doubt on the safety of the conviction, bearing in mind the various references which the judge did make to the relevant evidence. In those circumstances we are satisfied that McGowan's conviction is safe.

38. Dawuda-Wodu renews his application for leave to appeal against conviction on grounds relating to the admission of bad character evidence of his conviction for the murder of Cham. Mr Etherington KC and Mr Ward, both of whom have been good enough to act pro bono in this regard, submit that the judge was wrong to admit the evidence for a number of reasons. They submit that the circumstances of the premeditated killing of Cham were different from those of the spontaneous attack on Hirshman. They further submit that there was a dangerous circularity in the prosecution argument, because evidence relating to the attack on Hirshman had been adduced as bad character evidence against Dawuda-Wodu in the murder trial. It is submitted that it was therefore possible that the allegation of the wounding offence had contributed to the jury's decision to return the conviction for murder, which the prosecution now relied upon to support the allegation of wounding. Even if the evidence was admissible, counsel submit that it should have been excluded because of the powerful prejudicial effect of informing the jury that this appellant had a conviction for murder.

39. These submissions are opposed by the respondent. Miss Wilkinson submits that there were important similarities between the two offences, in that both involved a group attack in which the victim was repeatedly stabbed with knives. She submits that the jury in the murder trial had been properly directed about the need to be sure of the allegation against the appellant in relation to the attack on Hirshman, before they could rely on that evidence as supporting the charge of murder. The appellant had been convicted of murder; there had been no appeal against that conviction; and the evidence of his involvement in that offence had a probative value which outweighed the prejudicial effect.

40. Again, we have reflected on these submissions. Like the single judge, we regard these grounds of appeal as unarguable. Counsel has not suggested that the conduct of either of the two trials was contrary to law. It is a matter of speculation whether, and to what extent, the jury at the Central Criminal Court relied on the evidence of the appellant's involvement in the attack on Hirshman in reaching their verdict; but they were correctly directed as to how they should approach that evidence, and there is no basis for thinking that they failed to follow the directions. At the time of this trial, the appellant had been convicted of the murder of Cham, which involved a similar group attack with knives on a lone victim only a couple of weeks before the attack on Hirshman. The jury were again properly directed as to their approach to the evidence of the appellant's involvement in the murderous attack on Cham, and again there is no reason to doubt that they followed the direction. We note that that jury acquitted the appellant of the charge of attempted murder, and the jury at the Central Criminal Court acquitted him of the charge of the murder of Algar. The argument based on circularity does not, in our view, assist the appellant. If the jury were sure that he took part in a knife attack on Cham, as the conviction for murder showed he had done, they were entitled to find that the evidence showed a propensity to commit offences of violence using a knife, which was clearly probative of this offence. We are therefore satisfied that there is no arguable ground on which it could be said that Dawuda-Wodu's conviction is unsafe.

41. Baker having abandoned his application for leave in respect of conviction, we need say nothing about it, save to record our gratitude to Mr Argyropoulos for being good enough to act pro bono in that regard.

42. We turn to the issues relating to sentence. We begin by considering a point which concerns all the appellants.

43. As we have noted, both judges placed the offence in category 1A of the Sentencing Council's relevant definitive guideline. There is no, or at any rate no vigorous, challenge to the finding of category A culpability, because it is acknowledged that highly dangerous weapons were used; but it is submitted that harm should have been placed in category 2, rather than category 1. Of the three factors listed in the guideline as indicating category 1 harm, only one was found to apply, namely that "particularly grave or life-threatening injury" was caused.

44. In Attorney General's Reference (R v O'Brien) [2022] 1 Cr App R(S) 53, this court held that the phrase "life-threatening injury" does not cover every wounding which causes an injury which might, if left untreated, lead to death. The court emphasised the need to read the guideline as a whole, to assess the level of harm with reference to the impact on the victim, and to reserve category 1 harm for "cases of exceptional seriousness, even within the class of section 18 cases". We respectfully endorse that guidance. It must be borne in mind that the other factors listed in category 1 are: "physical or psychological harm resulting in life-long dependency on third party care or medical treatment" and "permanent, irreversible injury or psychological condition which has a substantial and long-term effect on the victim's ability to carry out their normal day to day activities or on their ability to work".

45. Hirshman certainly suffered injury which, even by the standards of a section 18 offence, was "grave", and therefore came within category 2. But in our view the injury which he suffered fell short of being "particularly grave" by those standards. The starting point should therefore have been seven years, rather than 12 years' custody, although each judge would have been justified in moving upwards from that starting point to nine years' custody to reflect the fact that the injury was a serious example of category 2 grave harm.

46. In so far as that point was not initially raised by all the appellants, we accept the submissions made as to why the necessary extensions of time should be granted. The error as to categorisation resulted in sentences which were wrong in principle or manifestly excessive and makes it necessary for us to adjust each of the sentences appropriately.

47. We see less force in some of the other submissions made on behalf of the appellants. The circumstances of the attack on Hirshman were in themselves sufficient, in our view, to justify each of the findings of dangerousness which were made. In relation to the three appellants whom he sentenced, Judge Shetty was entitled to conclude that an extended sentence was necessary to protect the public. Judge Shetty gave careful consideration to the young age and level of maturity of the appellants, and we can see no basis on which he could be said to have fallen into error in making the reductions he did on those grounds.

48. In relation to Dawuda-Wodu, and with respect to Judge Joseph KC, we are persuaded that rather more weight should have been given to the appellant's young age, in particular by making a significant initial downwards adjustment of the starting point for murder, before considering aggravating and mitigating factors, and by making appropriate adjustments to the sentences which would have been imposed on a mature adult for the other offences. We are also persuaded that the appellant should have received greater credit than he did for his guilty plea to perverting the course of justice. In the result, we are satisfied that the minimum term ordered by the judge was manifestly excessive and must be reduced.

49. For the reasons we have given, we reach the following conclusions.

50. In McGowan's case, we refuse the application for an extension of time in which to renew two grounds of appeal against conviction. We dismiss his appeal against conviction. We allow his appeal against sentence to this extent. We quash the extended sentence of seven years and substitute for it an extended sentence of five years and six months, comprising a custodial term of four years and six months' detention and an extended licence period of one year.

51. In Dawuda-Wodu's case, we refuse the renewed application for leave to appeal against conviction. We allow his appeal against sentence to this extent: on count 2 (murder) we quash the sentence of custody for life, with a minimum term of 31 years and substitute for it a sentence of custody for life, with a minimum term of 29 years (less the 582 days spent on remand in custody). We quash the sentences imposed below for the other offences and substitute for them the following: for perverting the course of justice, five years' detention; for wounding with intent, seven years' detention. Those sentences will run concurrently with each other and with the life sentence.

52. In Baker's case, we grant the necessary extension of time for him to appeal against sentence. We grant leave to appeal, and we allow his appeal to this extent: we quash the extended sentence of eight years and substitute for it an extended sentence of seven years, comprising a custodial term of six years' detention and an extended licence period of one year. As before, 139 days will count towards sentence to reflect the time spent subject to a qualifying curfew.

53. In Backhouse's case, we similarly grant the necessary extension of time for him to appeal against sentence, grant leave to appeal, and allow his appeal to this extent. We quash the extended sentence of eight years and substitute for it an extended sentence of seven years, comprising a custodial term of six years detention and an extended licence period of one year. As before, that extended sentence will run consecutively to the total of 12 months' detention in a young offender institution, comprising concurrent terms of 12 months on each of the drugs offences and the money laundering offence. As before, 240 days will count towards sentence in respect of time spent subject to a qualifying curfew.

54. The effect of our decisions, from the appellants' points of view, is that none of the appeals against conviction has succeeded, but each appellant has succeeded to a limited extent on his appeal against sentence.

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McGowan & Ors, R. v [2023] EWCA Crim 247 (21 February 2023) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2023/247.html Cite as: [2023] EWCA Crim 247

England and Wales Court of Appeal (Criminal Division) Decisions